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Town of Albion v. Town of Murray v. DEC v. DOT v. Orleans Co DOH v. Department of Planning and Development

Lead Agency Dispute

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Designation of lead agency for the conceptual review of a proposed Construction and Demolition landfill in the Town of Murray, Orleans County and a Mixed Solid Waste landfill in the Town of Albion, Orleans County.

INVOLVED AGENCIES:

Town of Albion

Town of Murray

Region 8 Office of the New York State Department of Environmental Conservation

NYS Dept. of Transportation

Orleans County Dept. of Health

Orleans County Dept. of Planning and Development

This decision to designate the Region 8 New York State Department of Environmental Conservation as lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. I find that the potential impacts of the proposed action are of greater regional than local concern and that DEC has the broadest governmental powers for investigation of the potential impacts of the proposed landfills.

This lead agency dispute involves two separate applications by Landcom Inc. 1. A 50 acre, 2000 ton per day capacity construction and demolition site in the Town of Murray, Orleans County, 2. A 70 acre, 2500 ton per day Mixed Solid Waste site in the Town of Albion, Orleans County. The two sites are located directly across from each other separated by Transit Road which serves as the common Town line.

In a letter dated March 9, 1992 to the DEC Region 8, the Town of Albion objected to the DEC acting as lead agency and requested that the Town of Albion be designated as the SEQR lead agency for the proposed sanitary landfill. The request was based on the following:

By virtue of Chapter 49 of the Town law (landfill ordinance) and Chapter 103 (zoning) the Town has complete discretionary determination over the final issuance of a landfill permit.

The Town argues that the anticipated impacts from the proposed actions are more of a local nature and as such the Town is better able to address those impacts.

The Town has had previous experience as lead agency in the siting of landfills. The Town was lead agency in the 1983 review of the Orleans Sanitary Landfill site.

The Town of Murray also sent a letter to the DEC on March 17, 1992 objecting to DEC acting as lead agency for the proposed Construction Demolition facility. The Town indicated that the impacts are of a local nature and feel the Town would be in the best position to act as lead agency. DEC sent a letter to the Town of Murray on April 9, 1992 requesting the Town to provide more information of the Town's jurisdiction over the project by April 24, 1992. The Town did not respond.

The applicant, Landcom Inc. submitted applications for the C&D and the sanitary landfill facilities to the DEC Region 8 office in early February 1992. On March 27, 1992 the applicant made a request for a DEC Conceptual Review.

In resolving a dispute about lead agency. I am guided by the three criteria listed in order of importance in 6 NYCRR Section 617.6(e) (5). These are: whether the anticipated impacts are primarily of local, regional or statewide significance; which agency has the broadest powers for investigation of potential impacts; and which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.

In consideration of the first criterion, the Town of Albion contends that the issues are primarily local, citing housing traffic flow, and local economic impacts. The DEC region 8 staff contend that the projects have regional impacts on the disposal of solid waste; may have cumulative impacts that require the two facilities be considered together and will service the remainder of Orleans County, and Allegany, Cattaraugus, Chautaugua, Erie, Genesee, Livingston, Montore, Niagara, Ontario and Wyoming Counties according to the application. Other impacts such as solid waste management and traffic impacts as one example will be felt well outside of the Town of Albion and routing into the Town may become a major issue. Therefore, the siting criteria and study required by the DEC review will require the evaluation of alternatives beyond the borders of the Towns of Albion and Murray.

In consideration of the second criterion, the DEC has comprehensive authority under the Part 360 Solid Waste Management regulations to review all issues relating to solid waste disposal. The applicant has requested the DEC to conduct a conceptual review pursuant to 6NYCRR Section 621.11. Under conceptual review the Department issues a decision whether, on the record compiled, the proposed projects are consistent with the environmental policy of the state as expressed in the Environmental Conservation Law, taking into account both specific permit and SEQR requirements.

Further, the Town of Albion has no jurisdiction over the proposed landfill in the Town of Murray. Since the Town of Murray did not respond to my information request, I can only conclude that it has no authority to exercise. Since comprehensive review and authority for both proposals should be taken together, DEC is best suited as lead agency.

In consideration of the third criterion, the DEC Region 8 office has indicated it would combine the SEQR reviews for the two landfill applications under one Environmental Impact Statement. The region is currently staffed with the necessary experience to fully assess and evaluate the potential impacts associated with these landfill applications.

I conclude, based on all the facts presented, that the Department of Environmental Conservation best serves the function of lead agency for conduct of review under SEQR for the proposed construction and operation of the two landfill proposals by Landcom Inc. in the Towns of Albion and Murray, Orleans Co. because the primary concerns are regional in nature and their assessment falls primarily within the regulatory powers of the DEC.

This decision does not in any manner limit the jurisdiction of any of the involved agencies or minimize their responsibilities to review this entire proposed action and to assist the DEC in the completion of the environmental review process. It is my hope that as an involved agency, you will actively participate in the scoping for the EIS and provide DEC with the necessary support to see that local concerns are adequately addressed.